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by the Tyrone division of the lines of the mission referred to its report filed the Pennsylvania Railroad Company, herein- same day in the case of Hillsdale Coal & after called the company, and shipped coal Coke Co. v. Pennsylvania R. Co. 19 Inters. from their mine in interstate commerce. In Com. Rep. 356, in which the discriminatory April, 1907, the plaintiffs made complaint character of the rules of car distribution before the Interstate Commerce Commission of the company is fully discussed (page of discriminatory practices against them in 364) and the rules are condemned, largely the distribution of coal cars, in violation of because of the advantages given to the the Act to Regulate Commerce. The Com- owners of private cars unless the samo mission made findings, among others, that shall be counted against the distributive Falcon No. 2 was not placed on an equal share of the mine receiving them.. See also footing with the mines of the Berwind the discussion of these rulings in PennsylWhite Coal Company in the matter of the vania R. Co. v. Clark Bros. Coal Min. Co. distribution of the defendant's available 238 U. S. 456, 59 L. ed. 1406, 35 Sup. Cto coal car equipment during the period of the Rep. 896. action. It also found a special allotment of On March 11, 1912, the Commission mado 500 cars daily to the Berwind-White Com- a further report, in which it found as folpany to be an undue preference and dis-lows: crimination, and on March 7th, 1910, the "We find that by reason of the discriminaCommission made an order, finding that the tions ascertained and set forth in our recomplainants had been unduly discriminated port in Jacoby v. Pennsylvania R. Co. 19 against, and set forth that it appeared “that Inters. Com. Rep. 392, the complainants it is and has been the defendant's rule, regu. were damaged to the extent of $21,094.39, lation, and practice, in distributing coal which they are entitled to recover with incars among the various coal operators on terest from June 28, 1907. its lines for interstate shipments during "The claimants here demand $51,950.49. percentage periods, to deduct the capacity The award above made we base upon evi. in tons of foreign railway fuel cars, private dence adduced of record, from which we find: cars, and system fuel cars, in the record “(a) That the fair rating of the mine herein referred to as 'assigned cars,' from for the time in question, as fixed by the dethe rated capacity in tons of the particular fendant and not objected to by the complainmine receiving such cars, and to regard the ants, was 450 tons per day. remainder as the rated capacity of that “(b) That during the period from April, mine in the distribution of all ‘unassigned' 1904, to March 31, 1905, the mine was opercars.” The Commission ordered "that the ated 275 days; and that during the second said rule, regulation, and practice of the period named on the exhibits, from April 1 defendant in that behalf unduly discrimi- to October 18, 1905, it was operated 1381 nates against the complainants and other days. coal operators similarly situated and is in "(c) That during the first of these periods violation of the 3d section of the Act to Reg. 38,714.23 tons were actually shipped from ulate Commerce and that the defend. Falcon No. 2, and during the second period ant be, and it is hereby, notified and 17,973.88 tons; that if the complainants required, on or before the 1st day of Novem- had received their fair share of the cars ber, 1910, to cease and desist from said available for distribution the mine would practice and to abstain from maintaining have made additional interstate shipments and enforcing its present rules and regula- and sales to the extent of 35,412.02 tons tions in that regard, and to cease and desist and 19,104.77 tons during the respective from any practice and to abstain from main

periods. taining any rule or regulation that does

"(d) That the average selling price of not require it to count all such assigned the complainants' product for the first pericars against the regular rated capacity of od was $1.212 per ton, and in the second the particular mine or mines receiving such period $1.1670; that the cost of production, cars in the same manner and to the same based on economical operation of the mine extent and on the same basis as unassigned with a fair car supply, would have been 92 cars are counted against the rated capacity cents during the entire period of the action; of the mines receiving them.”

and that the profit during the first period At the same time, the Commission ordered would therefore have been 29.2 cents and that the question of damages sustained by during the second period 24.7 cents per ton. the plaintiffs in respect to the matters and This measures the loss on the tonnage which things in the report found to be discrimina- the complainant was unable to ship. tory be deferred pending further argument. "(e) That the actual cost of production See also 19 Inters. Com. Rep. 392, where the is shown by the record as $1.016 per ton decision is reported. In that case the Com-' during the first period and $1.049 per ton during the second period, making an excess , 412, 426–431, 59 L. ed. 644, 656-658, P.U.R. of 9.6 cents and 12.9 cents for the respec- 1915D, 1072, 35 Sup. Ct. Rep. 328, Ann. tive periods in the actual cost of production Cas. 1916B, 691, and second Meeker Case, under the conditions obtaining, as compared 236 U. S. 434, 59 L. ed. 659, 35 Sup. Ct. with what would have been the cost based Rep. 337. This court said in Mills v. Leon a fair car supply as heretofore stated. high Valley R. Co. 238 U. S. 473, 481, 59 This is the basis adopted for computing the L. ed. 1414, 1418, 35 Sup. Ct. Rep. 888, loss sustained by these complainants in di- after quoting from the Meeker Cases supra: minished profits for the coal actually “The statute was not concerned with mere shipped during the period in question." forms of expression, and, in view of the

On March 11th, 1912, the Commission decision that a finding of the ultimate fact made a reparation order in favor of the of the amount of damage is enough to give plaintiffs, confirming its former orders, find the order of the Commission effect as prima ings, and conclusions, and ordering that the facie evidence, we think the court did not company should pay to the plaintiffs on or err in its ruling. The statutory provision before the 1st day of June, 1912, the sum merely established a rule of evidence. It of $21,094.39, with interest thereon at the leaves every opportunity to the defendant to rate of 6 per cent per annum from June contest the claim." 28th, 1907, as reparation for defendant's In order to meet the prima facie case discrimination in distribution of coal cars, made by the plaintiffs upon the orders of which discrimination had been found by the Commission in awarding damages, in the Commission to be unlawful and unjust. the course of the testimony the company Upon these orders of the Commission, suit put in evidence certain sheets, which were was brought in the district court of the offered in evidence before the Commission United States, for the eastern district of by the plaintiffs, in the hearing before that Pennsylvania, on July 19th, 1912, the ac- body, known as exhibit No. 10. These tion being based upon § 16 of the Act to sheets were entitled, “Detailed statements Regulate Commerce (34 Stat. at L. 590, showing discrimination in favor of other chap. 3591, Comp. Stat. 1913, § 8584). The mines and against Falcon No. 2 (the mine case was heard in the district court, and of the plaintiffs), from April 1st, 1904, to resulted in a verdict for the amount award- April 1st, 1905," and "from April 1st, 1905, ed by the Commission, with interest there to October 15th, 1905,” respectively, these on. On the case going to the circuit court being the periods for which recovery was of appeals, that court certified certain ques- sought in this case by the plaintiffs. These tions to this court, and upon writ of cer sheets undertook to show the percentage of tiorari the whole record was brought here. cars awarded to certain preferred companies

The case was argued before this court at by the railroad company, as compared to the October term, 1915. At that term the those awarded to the plaintiffs for use in judgment below was affirmed, with costs, by their mine during the period stated. They a divided court. Afterwards, and at the were intended to show that the favored same term, a petition for rehearing was companies received cars during the first granted and the former judgment set aside, period to the extent of 59.9 per cent of their and the case restored to the docket for re- mine rating, and during the second, 59.6 argument. 239 U. S. 631, 60 L. ed. 476, per cent of their mine ratings, which per36 Sup. Ct. Rep. 166.

centages were much larger than the plainAt the trial in the district court the plaintiffs received for their mine during the like tiffs offered no other testimony as to the periods. In other words, it was thus sought amount of damages sustained by them than to establish that the favored mines received, that contained in the orders of the Com- not their just proportion of the distributamission, before recited. Section 16 of the ble cars, but a much larger, and highly disact makes the findings and orders of criminatory share when compared with the the Commission prima facie evidence of the allotment made to the plaintiffs. It is the facts therein stated, and it may be con contention of the company that it is deceded that if no testimony was offered in monstrable from this record that these tathe case to overcome the prima facie case bles showing the percentages awarded to thus made, the orders of the Commission favored companies were made the basis of would be controlling and determine the the Commission's award of damages. amount of recovery. The prima facie char. We have already seen from the orders of acter of the findings of fact and award of the Commission, above recited, the manner damages by the Commission was established in which it made its award and reached its upon full consideration of the subject in conclusion as to the amount recoverable by Meeker v. Lehigh Valley R. Co. 236 U. S. the plaintiffs. At the trial in the district court, the Company placed a witness upon of damages sustained by reason of the ilthe stand, who testified as follows:

legal discrimination practised against the

plaintiffs, as found by the Commission, but Q. Referring to the order which has been upon the basis that they were entitled to put in evidence, made by the Interstate Com- receive cars equal in ratio to those illegally merce Commission, finding a certain amount and preferentially given to the certain faas due Jacoby & Company, will you please vored companies named in the tables. The say whether you have taken the daily rat-effect of the enforcement of such rule would ing fixed by the Commission as proper; be not to give the shipper the damages namely, 450 tons per day, and multiply that which he actually suffered, but would base by 275 days, the days which the Commis- the recovery upon a rule which is condemned sion found the plaintiff's mine would have as to others, because of its discrimination been able to work in the year ending March in their favor,-a result manifestly not in31, 1905, and tell us what the aggregate tended by the act of Congress. number of tons is, based upon those two The testimony being in the condition figures ?

which we have stated, and the plaintiffs A. 123,750 tong.

having offered no testimony to show the Q. In that same order the Commission amount of damages sustained other than has found that the plaintiff shipped in that that contained in the order made by the period 38,714.23 tons and that they ought Commission, the company made certain to have received cars which would have en- definite requests to charge, which were reabled them to ship 35,412.02 tons addition- fused. In one of them, they requested a al. If they had made those additional ship- peremptory instruction in favor of the comments what would the total volume of pany upon the ground that as the award shipments have been?

of the Interstate Commerce Commission was A. 74,126.25 tons.

based upon the conclusion that, in the year Q. What percentage of the aggregate ca- ending April 1st, 1905, the plaintiffs should pacity of the mine, based upon 450 tons per have received cars equal in capacity to day and 275 days, are the aggregate ship- 59.9 per cent of the aggregate of their daily ments which would have been made, which mine rating for 275 days, and in the period you have just spoken of ?

between April 1st and October 18th, 1905, A. 59.9 per cent.

cars equal in capacity to 59.6 per cent of Q. Coming to the second period of the their daily mine rating for 1383 days, it action, the Commission found that 450 tons was apparent that this conclusion of the per day was a proper rating for the mine Commission was based upon the evidence and that the mine would have been capable presented by the plaintiffs that the aggreof working 1387 days. What, on that basis, gate of the cars placed by the defendant at is the aggregate capacity of the mine in that certain mines selected for the purpose of period ?

comparison from those comprised in the A. 62,212.51 tons.

region in which the plaintiffs' mine was Q. In their order the Commission found located had been equal in the earlier period that in that period the mine had shipped to 59.9 per cent, and in the later period 17,973.88 tons and that it should have re- 59.6 per cent of the aggregate ratings of ceived cars which would have enabled it to these selected mines. If the court should ship 19,104.77 tons additional. If it had refuse to charge as above requested, the made those additional shipments, what court was requested to instruct the jury would have been the total shipments in as follows: that period?

“8. If the jury should find that the conA. 37,078.65 tons.

clusion of the Interstate Commerce Com. Q. And what percentage is that of the mission that the plaintiffs, in the year endaggregate rated capacity based on 450 tons ing April 1, 1905, should have received a day and 1387 days?

cars equal in capacity to 59.9 per cent of A. 59.6.

the aggregate of their daily mine ratings,

and in the period between April 1 and OcThis testimony was competent in order tober 18, 1905, cars equal in capacity to to meet the plaintiffs' case based on the or. 59.6 per cent of the aggregate of their daily ders of the Commission, and from it we mine ratings, was reached or arrived at think the conclusion is inevitable that the because of the evidence presented by the Commission may have used the percentages plaintiffs that the aggregate of the cars of 59.9 per cent and 59.6 per cent respective placed by the defendant at certain mines ly in reaching the amount of damages selected for the purpose of comparison from awarded to the complainant. If so, the re- those comprised in the region in which the covery was permitted, not upon the basis plaintiffs' mine was located had been equa! in the earlier period to 59.9 per cent and in was reduced in the general allotment by the later period to 59.6 per cent of the ag- favoring somebody else and taking the cars gregate ratings of these selected mines, the from them. However correct these general basis for the Commission's conclusion and observations may have been, we think it award was an erroneous one, and the plain was error in the state of the record to tiffs consequently are not entitled to re- which we have already referred to refuse cover."

the specific charge requested. In view of the testimony as we have al. It is urged that the testimony before the ready stated it, we think the company was

Commission is not all in the record, and entitled to have this eighth request given that, for aught that appears, the Commisin charge to the jury. Nor do we think sion may have reached its conclusion and this refusal was cured by the charge that awarded damages upon other and competent the finding of the Commission was prima proofs, and it is insisted that the coincidence facie correct, and entitled to weight as of the amount as awarded and the amount such unless the defendant produced evidence ascertained by the use of the percentages to show that some other state of facts ex-contained in the tables may not necessarily isted, and that the plaintiffs had not suf-have controlled the action of the Commisfered the damages awarded to them by the sion. But it is difficult to reach the conCommission, and the charge in general clusion that the Commission could have terms that it was the duty of the company arrived at the result so exactly correspondto apportion and deliver to the plaintiffs ing with the one obtained by the use of the their fair share of all cars available during percentages shown in the tables, except by the period of the action to shippers in the actually using them to ascertain the sum district in which plaintiffs' mine was lo- which is exactly the amount resulting from cated, and that, if plaintiffs received their their application. The Commission might full and proportionate share of cars in the have approximated the same result by usdistrict, they had no cause for complainting other and legal means to ascertain the against the company, and the burden was damages sustained, but when it is demonupon 'the plaintiffs to establish by satis- strated that the use of the percentages prefactory proof that they did not receive their cisely produces the amount awarded to the share; nor by other parts of the charge in dollar and cent, it seems almost mathewhich the jury was told in general terms matically certain that the result could have that the shipper was entitled to recover the been reached in no other way. At least, full amount of damages which he sustained, we think that the testimony was in such and that, in arriving at such damages, the shape that, as we have already said, the jury could only take into consideration company was entitled to the specific rewhether they had been discriminated quest upon this subject submitting the matagainst, and to what extent they were ter to the jury. damaged by that discrimination, and that, For error in refusing to give this. request if the Berwind-White Company got 59 per in charge, the judgment of the District cent of its output when the average allotta- Court must be reversed, and the case reble was 28 per cent, it did not necessarily manded to that court for a new trial. follow that the plaintiffs would be damaged

Reversed. the entire difference between 28 per cent and 59 per cent, but their damage would be Dissenting, Mr. Justice Pitney. the amount to which their number of cars

(212 U. S. 100) SETON HALL COLLEGE, Piff. in Err., village of South Orange, for the year 1911,

the contention being that the act of the VILLAGE OF SOUTH ORANGE, in Essex legislature of New Jersey of March 16th,

County, New Jersey, and Board of Equali. 1870, hereinafter referred to, constituted a zation of Taxes of New Jersey, Defts. in contract which could not be repealed by subErr.

sequent legislation without doing violence

to the contract clause of the Constitution CONSTITUTIONAL LAW 138 – IMPAIRING of the United States.


The case

was heard by the Board of The extension to Seton Hall College Equalization of Taxes of New Jersey, and by N. J. Laws 1870, chap. 267, an act sup- by the supreme court of that state, upon a plementing its charter, of the same exemp; stipulation of facts: tion from taxation which had been granted

“(1) Seton Hall College was incorporated to another educational institution, should not, in the face of a contrary ruling of the under an act of the legislature of the state state courts, be deemed to have created a of New Jersey entitled, 'An Act to Incorcontract which could not be repealed by porate Seton Hall College, chapter 86 of subsequent legislation without doing vio- the Laws of 1861, pages 198 and 199, aplence to the contract clause of the Federal proved March 8th, 1861. Constitution, where such statute was not

“(2) A supplement to said act was passed, enacted until several years after Seton Hall being chapter 267 of the Laws of 1870, enCollege was incorporated and had entered titled, “Supplement to an Act to Incorporate upon the discharge of its charter obligations Seton Hall College,' approved March 8th, without reliance upon any legislative au

approved thority exempting it from taxation, and 1861, which supplement upon such enactment the college entered March 16th, 1870. upon no new undertaking, and made no “(3) The act incorporating Drew Theolog. agreement by which it promised to do some-ical Seminary of the Methodist Episcopal thing, nor did it part with anything because Church, referred to in the supplement above of the immunity thus extended to it by the mentioned, was approved Feb 12th, state,-especially since, at the time of the making of the alleged contract, a state stat- ) 1868 (Laws of 1868, chap. 2, p. 4). ute was in force which made all corporate

"(4) That Seton Hall College accepted its charters subject to legislative alteration and charter contained in the Laws of 1861 aforerepeal.

said, and thereafter purchased real and Law, Cent, Dig. $$ 303, 408 ; Dec. Dig. Ow138.) college buildings thereon, and continuously [Ed. Note. For other cases, see Constitutional personal property from time to time, erected [No. 74.]

since has been and still is actively engaged

in carrying out the purposes of its creation Submitted November 3, 1916. Decided De and fulfilling its obligations imposed by its cember 4, 1916.

said charter, and has been and is exercising

all the powers granted by said charter. N ERROR to the Supreme Court of the “(5) After the supplement to its char.


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ment, affirmed by the Court of Errors and accepted the same, and purchased further Appeals of that state, sustaining the valid lands and erected further buildings, and has ity of a tax levied upon the property of an continued ever since to live up to the terms educational institution. Affirmed.

of both acts and carry out the purposes of See same case below, 86 N. J. L. 365, 90 its creation, and has been and is exercising Atl. 1126.

all the powers granted thereby. The facts are stated in the opinion. "(6) That the lands in question, with othMr. William J. Kearns for plaintiff in er lands, were acquired by the college by

a conveyance dated the 17th day of October, Mr. Adrian Riker for defendants in er. 1864, and recorded in the office of the regis

ter of the county of Essex on the 21st day

of February, 1865, in book M-12 of deeds Mr. Justice Day delivered the opinion of for said county, on page 343. the court:

(7) That no assessment or tax has been This is a writ of error to the supreme levied or imposed upon the property, real court of New Jersey, seeking to reverse a and personal, of Seton Hall College from judgment of that court, which judgment the date of its original charter in 1861, was affirmed by the court of errors and ap- down to the year 1911; and the tax in quespeals of New Jersey (86 N. J. L. 365, 90 tion, imposed in the year 1911, is the first Atl. 1126), and the record remitted to the tax imposed or attempted to be imposed supreme court. The case involves the valid- upon the property of said Seton Hall Col. ity of a tax levied by the assessor of the 'lege, real or personal."

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